09/07/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 11, 2017 Session

DAMON HOLLAND V. BRIAN SULLIVAN, ET AL.

Appeal from the Circuit Court for Davidson County

No. 16C86 Joseph P. Binkley Jr., Judge

No. M2016-00538-COA-R3-CV

The issues in this appeal arise from two very unorthodox agreements and the defendants’

actions to avoid the consequences of the agreements. The agreements are unorthodox 

because, inter alia, each purports to be a “Bill of Sale” of an automobile when in fact 

each is a loan agreement for which the certificate of title is held by the lender as security. 

To complicate matters, the defendant who signed both agreements only owned one of the 

vehicles; his wife owned the other, and it is disputed whether the husband was authorized 

to act on her behalf. When the husband failed to pay either debt, the lender attempted 

unsuccessfully to possess the vehicles. Immediately thereafter, the husband and wife

applied for and obtained new certificates of title and then used one of the duplicate titles

to sell one of the automobiles to a third party. Thereafter, the lender commenced this 

action against the husband and wife for breach of contract, slander of title, and conspiracy 

to commit slander of title. The lender sought both compensatory and punitive damages. 

Following a bench trial, the court found the husband liable for breach of contract, and 

found the husband and wife jointly liable for slander of title and conspiracy to commit 

slander of title. The court then awarded compensatory damages in the amount of 

$32,456.89 and punitive damages in the amount of $30,000. The defendants appealed

contending the trial court erred in failing to consider their affirmative defenses and in 

failing to hold that the Tennessee Title Pledge Act, Tenn. Code Ann. §§ 45-15-101 to -

120 barred any recovery. They also contend that the evidence does not support a finding

that the husband breached the contract or that they were jointly liable for slander of title

and for conspiracy to commit slander of title. They further argue the trial court erred in 

awarding punitive damages. We affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and JOHN W. MCCLARTY, J., joined.
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Shannon L. Crutcher, Nashville, Tennessee, for the appellants, Brian Sullivan and 

Tamara J. Sullivan.

Casey Adam Long, Franklin, Tennessee, for the appellee, Damon Holland.

OPINION

On August 28, 2013, Damon Holland and Brian Sullivan executed a written 

agreement titled “Bill of Sale” that conveyed a 2013 BMW to Mr. Holland for $30,000. 

Concurrent with the execution of the Bill of Sale, Mr. Holland gave Mr. Sullivan 

$30,000, and Mr. Sullivan delivered to Mr. Holland the certificate of title to the BMW. 

But for Mr. Holland taking possession of the BMW, it would appear that a routine sales 

transaction had been concluded as of August 28, 2013. Well, it was neither routine nor 

concluded.

As the following reveals, the transaction was unorthodox, at best, for several 

reasons. One unorthodox aspect is that the Bill of Sale included a provision titled

“Agreement to Resale Back to Brian Sullivan.” Pursuant to this provision, Mr. Sullivan 

could repurchase the BMW within 10 days of the purchase date (August 28, 2013) for 

$33,000; within 33 days for $35,000; or, if beyond September 30, 2013, for $35,000 plus 

$5,000 for each additional month beyond September 30, 2013. Another unorthodox 

aspect of the transaction is that the parties had an oral agreement that Mr. Sullivan could 

retain possession of the BMW for an indeterminate time while Mr. Holland retained the

certificate of tile. Another complicating factor is that, although Mr. Sullivan signed the 

Bill of Sale for the BMW, he did not own the BMW, and he did not have a power of 

attorney to sign a bill of sale. The registered owner of the vehicle was Mr. Sullivan’s 

wife, Tamara Sullivan and while the certificate of title bore the signature “Tamara 

Sullivan,” she denied having signed the title.

Two months later, Mr. Holland and Mr. Sullivan entered into an agreement

pursuant to which Mr. Sullivan purportedly sold a 2013 Land Rover, which Mr. Sullivan 

owned, to Mr. Holland for $22,000. It was entitled “Bill of Sale of Motor Vehicle” but, 

unlike the previous bill of sale, this one did not contain a buy-back provision. 

Nevertheless, both Mr. Holland and Mr. Sullivan acknowledged that they had a 

“handshake agreement” to that effect and on terms similar to the prior agreement. 

The parties executed the Bill of Sale of Motor Vehicle on November 6, 2013. 

Concurrent with the execution of the bill of sale, Mr. Sullivan delivered the signed 

certificate of title to the Land Rover, and Mr. Holland tendered $22,000 in cash to Mr. 

Sullivan but, by agreement of the parties, Mr. Sullivan retained $17,000 while Mr. 
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Holland retained $5,000.

1 As Mr. Holland explained, because Mr. Sullivan was still in 

possession of the BMW and intended to repurchase the BMW, it was agreed that Mr. 

Holland would apply the $5,000 to the repurchase price for the BMW. As had been done 

in the previous transaction, Mr. Sullivan retained possession of the Land Rover while Mr. 

Holland retained the title to the vehicle as security for the loan. 

On May 20, 2014, Mr. Sullivan delivered two checks to Mr. Holland. One of 

them, check No. 1435, was payable to Music City Pawn, Mr. Holland’s company, in the 

amount of $71,210. The other, check No. 1436, was payable to Mr. Holland in the 

amount of $48,000. However, Mr. Sullivan stopped payment on both checks before they 

were negotiated. At trial Mr. Sullivan testified that he stopped payment based on a 

subsequent agreement with Mr. Holland. He claimed that Mr. Holland agreed to return 

the titles to both vehicles in exchange for $5,000. Mr. Holland disputes having made any

such agreement. 

Three days later, and at the request of Mr. Holland, Mr. Sullivan wrote a check 

payable to the order of Tervice Burnett, Mr. Holland’s sister and business partner, for 

$5,000. Mr. Sullivan added a note in the memo line of the check that stated: “Payment in 

full for Damon Holland and M.C.P. [Music City Pawn] for all outstanding loans. 

Replaces Check Numbers 1435 and 1436 for the cash received.” Ms. Burnett cashed the

check. At trial, Mr. Holland acknowledged that he requested the payment to Ms. Burnett

but insisted that he would not have authorized her to cash the check if he had known what 

was written in the memo line.

In August 2014, Mr. Holland hired Harpeth Towing to take possession of both

vehicles and to deliver them to him. When Harpeth Towing arrived at the Sullivans’

home, Harpeth’s employees immediately began loading the Land Rover onto the towtruck. As they were loading it, the Sullivans came out and attempted to stop them, but

Harpeth Towing was able to remove the Land Rover. However, the Sullivans prevented 

Harpeth Towing from removing the BMW.

2

Although they had already dug themselves into a deep hole, a point at which most 

people stop digging, the Sullivans kept digging by driving to the Davidson County 

Clerk’s Office, whereupon they applied for and obtained duplicate vehicle titles to both 

vehicles. After obtaining duplicate titles, the Sullivans used the duplicate title to sell the 

BMW to a third party. 

 

1

The transaction took place at a SunTrust Bank while Mr. Holland withdrew $22,000 in cash 

from an account owned by D&T Holdings, LLC d/b/a Music City Pawn, of which Mr. Holland was the 

sole member.

2

The BMW was in the Sullivans’ garage and the Sullivans would not let them in the garage.
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Mr. Holland commenced this action against the Sullivans alleging claims for 

breach of contract, conversion, slander of title, and civil conspiracy. The Sullivans filed 

an answer and counterclaim, asserting claims against Mr. Holland for breach of contract 

and conversion of the Land Rover. In their counterclaim, the Sullivans appear to assert

the following affirmative defenses as causes of action: accord and satisfaction; usury; 

fraud; and unlawful repossession; and that “if these transactions are deemed a title loan, 

that it is illegal and unenforceable for the amount is over the limits allowed by Tennessee 

Law.”

The case was tried without a jury over two days. At the conclusion of the trial, the 

trial court stated its detailed findings of fact and conclusions of law from the bench, and 

we summarize the findings most pertinent to the issues on appeal as follows: 

1. Although both contracts are entitled “Bill of Sale,” the contracts reflect 

loans rather a sale due to, inter alia, the ambiguity created by the buyback provisions; the interest charges; the fact that the vehicles remained 

in the possession of the Sullivans; the fact that Mr. Holland did not sign 

the titles, record the titles, or pay sales tax on the transfer; and evidence of 

a similar transaction between the parties that occurred in 2010 with Mr. 

Sullivan successfully exercising the buy-back provision.

2. Concerning the signatures on the vehicle titles, as to the BMW, the trial 

court stated, “I don’t think Mrs. Sullivan signed [the BMW title]. . . . But 

. . . I’m not sure it’s really that important to anything.” As to the title for 

the Land Rover, the trial court found the signature on the title to be that of 

Mr. Sullivan. Nevertheless, the court further stated, “It’s not that 

important really whether he sign[ed] it or didn’t sign it. The parties 

intended to give [Mr. Holland] the titles to hold as security for the loans.”

3. The trial court found that Mrs. Sullivan’s claim that she did not know 

about the sale of the BMW until the trial was not credible.

4. As to whether the subject loan agreements are illegal and in violation of 

the Tennessee Title Pledge Act, Tenn. Code Ann. § 45-15-101 through 

120, the trial court found that the loan agreements are not subject to the 

Tennessee Title Pledge Act because the transactions were “person-toperson” rather than “business-to-person.” The trial court further found 

that should the opinion of the court regarding the application of Tenn. 

Code Ann. § 45-15-101 through 120 be in error, that such cause of action 

and defense has been waived by the Sullivans for failure to plead such 

cause of action or defense and having been raised for the first time during 

final arguments.

5. The Sullivans did not plead the defense of accord and satisfaction prior to 

trial and it was therefore waived.
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6. Mr. Sullivan breached the contract as to the BMW by failing to pay what 

was owed on the BMW and by failing to turn the vehicle over to Mr. 

Holland.

7. The Sullivans are liable of conspiracy because of the following: (1) there 

was a common design between the Sullivans each having intent and 

knowledge of the others intent to deprive Mr. Holland of his security 

interest; (2) conspiracy was accomplished by the Sullivans’ concerted 

actions for an unlawful purpose when, after realizing that Mr. Holland 

was attempting to collect the security for the loan agreements, the 

Sullivans went to the County Clerk’s office to obtain duplicate titles; and 

(3) overt actions occurred when the Sullivans applied for duplicate titles 

to both vehicles and sold the BMW.

8. The Sullivans are liable for slander of title for the following reasons: (1) 

Mr. Holland had an interest in property because he held the titles as 

securities for the loan; (2) the Sullivans published false statements about 

the property because they obtained duplicate titles and made false 

statements about the title to the property; (3) the Sullivans acted 

intentionally and maliciously because they knew Mr. Holland was 

attempting to gain possession of both vehicles, the Sullivans failed to 

inform the tow-service driver that the BMW was in their garage knowing 

that Mr. Holland sent the service to collect the security, and the Sullivans

subsequently obtained duplicate titles; and (4) the foregoing false 

statements caused Mr. Holland pecuniary loss because Mr. Holland’s 

security interest (the BMW) was sold.

9. The Sullivans are not guilty of conversion or trespass to chattels because 

they are the true owners of the vehicles.

10. Mr. Holland is entitled to punitive damages because Mr. Holland proved 

by clear and convincing evidence that the Sullivans acted intentionally.

Based on these and other findings, the trial court awarded Mr. Holland the 2013 

Land Rover as his property, compensatory damages in the amount of $40,756.89 less the 

$8,300 already paid by the Sullivans, and punitive damages in the amount of $30,000 for 

a final net judgment of $62,456.89. Relying on Tenn. Code Ann. § 29-11-107, the trial 

court held the Sullivans jointly and severally liable for this judgment due to the Sullivans’

liability for conspiracy and slander of title.3 As for Mr. Holland’s claims for conversion 

 

3 Tenn. Code Ann. § 29-11-107 reads in pertinent part as follows:

(a) If multiple defendants are found liable in a civil action governed by comparative fault, 

a defendant shall only be severally liable for the percentage of damages for which fault is 

attributed to such defendant by the trier of fact, and no defendant shall be held jointly 

liable for any damages.

(continued...)
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and trespass to chattels, the court dismissed them on the finding that the Sullivans were 

the true owners of the vehicles. On February 23, 2016, the trial court entered an order 

consistent with its oral ruling. From that order, the Sullivans now appeal. 

ISSUES

The issues to be considered are as follows:

1. Whether the trial court erred in failing to consider the affirmative defenses raised 

by the Sullivans and in finding Tenn. Code Ann. § 45-15-101 to -120 did not 

apply to the loans made by Mr. Holland.

2. Whether the evidence supports finding Mr. Sullivan liable for breach of contract.

3. Whether the evidence supports finding the Sullivans jointly and severely liable for 

slander of title.

4. Whether the evidence supports finding that the Sullivans conspired to commit 

slander of title resulting in each being jointly and severely liable for the actions of 

the other.

5. Whether the trial court erred in awarding punitive damages.

STANDARD OF REVIEW

“In all actions tried upon the facts without a jury, the court shall find the facts

specially and shall state separately its conclusions of law and direct the entry of the 

appropriate judgment.” Tenn. R. Civ. P. 52.01. If the trial court makes the required 

findings of fact, appellate courts review the trial court’s factual findings de novo upon the 

record, accompanied by a presumption of the correctness of the findings, unless the 

preponderance of the evidence is otherwise. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 

2014) (citing Tenn. R. App. P. 13(d)). “For the evidence to preponderate against a trial 

court’s finding of fact, it must support another finding of fact with greater convincing 

effect.” State ex rel. Flowers v. Tennessee Trucking Ass’n Self Ins. Grp. Trust, 209 

S.W.3d 595, 598-99 (Tenn. Ct. App. 2006). 

 

(b) Notwithstanding subsection (a), the doctrine of joint and several liability remains in 

effect:

(1) To apportion financial responsibility in a civil conspiracy among two (2) or more atfault defendants who, each having the intent and knowledge of the other’s intent, 

accomplish by concert an unlawful purpose, or accomplish by concert a lawful purpose 

by unlawful means, which results in damage to the plaintiff; 

Tenn. Code Ann. § 29-11-107(a) & (b)(1).
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Requiring trial courts to make findings of fact and conclusions of law is 

generally viewed by courts as serving three purposes. First, findings and 

conclusions facilitate appellate review by affording a reviewing court a 

clear understanding of the basis of a trial court’s decision. Second, findings 

and conclusions also serve “to make definite precisely what is being 

decided by the case in order to apply the doctrines of estoppel and res 

judicata in future cases and promote confidence in the trial judge’s 

decision-making.” A third function served by the requirement is “to evoke 

care on the part of the trial judge in ascertaining and applying the facts.”

Indeed, by clearly expressing the reasons for its decision, the trial court 

may well decrease the likelihood of an appeal.

Lovlace v. Copley, 418 S.W.3d 1, 34-35 (Tenn. 2013) (internal citations and footnotes 

omitted). 

While there is no bright-line test by which to assess the sufficiency of the trial 

court’s factual findings, the general rule is that “the findings of fact must include as much

of the subsidiary facts as is necessary to disclose to the reviewing court the steps by 

which the trial court reached its ultimate conclusion on each factual issue.” Id. at 35. 

“Simply stating the trial court’s decision, without more, does not fulfill [the Rule 52.01] 

mandate.” Gooding v. Gooding, 477 S.W.3d 774, 782 (Tenn. Ct. App. 2015) (quoting 

Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. 

App. Oct. 24, 2012)). 

If the trial court fails to explain the factual basis for its decisions, the appellate 

court “may conduct a de novo review of the record to determine where the preponderance 

of the evidence lies or remand the case with instructions to make the requisite findings of 

fact and conclusions of law and enter judgment accordingly.” Gooding, 477 S.W.3d at 

783) (citing Lovlace, 418 S.W.3d at 36); Ganzevoort v. Russell, 949 S.W.2d 293, 296 

(Tenn. 1997); Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424 

(Tenn. Ct. App. 2005)). 

Our review of a trial court’s determinations on issues of law, however, is de novo, 

without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 

895 (Tenn. 2011).

ANALYSIS

I. AFFIRMATIVE DEFENSES AND THE TITLE PLEDGE ACT

The trial court found that the Sullivans failed to plead affirmative defenses. 

Specifically, the court found that the Sullivans waived the Tennessee Title Pledge Act 

issue due to their “failure to plead such cause of action or defense.” Moreover, the court
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found the issue was first raised during final arguments at trial, which was too late. The 

court also found that “an accord or satisfaction of the debt is not a defense because such 

defense was not plead by the [Sullivans] prior to trial.” We agree.

The Sullivans’ answer to the complaint does not contain any affirmative defenses, 

at least none titled as “affirmative defenses” in the answer. More specifically, the 

Sullivans’ answer to the complaint does not specifically identify the Tennessee Title 

Pledge Act or Tenn. Code Ann. § 45-15-101 to -120. In fact, their only reference to any 

type of loan in their answer is in Paragraph 66 which reads: “The contents of Paragraph 

#66 of the Complaint is denied and demand strict proof thereof. Mr. Holland and Mr. 

Sullivan’s agreement was a loan with a repayment plan, not a purchase agreement.”

There are, however, vague references to “a title loan” in the prayer for relief in the 

Sullivans’ Verified Counter-Complaint, which reads, “[The Sullivans] assert that if these 

transactions are deemed a title loan, that it is illegal and unenforceable for the amount is 

over the limits allowed by Tennessee Law.” The trial court found that these statements 

failed to set forth an affirmative defense or a cause of action. We agree with the trial 

court.

Tenn. R. Civ. P. 8.03 sets the standard for raising an affirmative defense. It reads: 

In pleading to a preceding pleading, a party shall set forth affirmatively 

facts in short and plain terms relied upon to constitute accord and 

satisfaction, . . . fraud, illegality . . . and any other matter constituting an 

affirmative defense. When a party has mistakenly designated a defense as a 

counterclaim or a counterclaim as a defense, the court, if justice so requires, 

shall treat the pleading as if there had been a proper designation.

(emphasis added).

In their pleadings, the Sullivans fail to provide a short and plain statement of the 

facts or law relied upon to constitute an illegal loan transaction.

Also significant to the issue is Tenn. R. Civ. P. 8.05, which sets the standard for 

stating a claim or defense relying upon the violation of a statute. The rule states:

Each averment of a pleading shall be simple, concise and direct. . . . Every 

pleading stating a claim or defense relying upon the violation of a statute

shall, in a separate count or paragraph, either specifically refer to the statute 

or state all of the facts necessary to constitute such breach so that the other 

party can be duly apprised of the statutory violation charged. 
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Tenn. R. Civ. P. 8.05(1) (emphasis added). The Sullivans’ pleadings, whether treated as a

defense or a claim, do not identify the Tennessee Title Pledge Act or Tenn. Code Ann. §

45-15-101 to -120 as is required by Tenn. R. Civ. P. 8.05. 

“Pleadings play an important role in litigation.” In re Estate of Baker v. King, 207 

S.W.3d 254, 265 (Tenn. Ct. App. 2006). The pleadings required by the Tennessee Rules 

of Civil Procedure provide the parties and the trial court with notice of the claims and 

defenses involved in the case. Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 

291, 300 (Tenn. Ct. App. 2001) (citing Poster v. Andrews, 189 S.W.2d 580, 582 (Tenn. 

1943); Hammett v. Vogue, Inc., 165 S.W.2d 577, 579 (Tenn. 1942)). Therefore, a

defendant must put forth more than a conclusory statement that “X” defense applies. See 

ACG, Inc. v. Southeast Elevator, Inc., 912 S.W.2d 163, 170 (Tenn. Ct. App. 1995) 

(holding that defendant waived the defense of estoppel even where the defendant 

explicitly stated the defense in the answer because the statement provided only 

conclusory allegations). 

In this case, the Sullivans’ pleadings do not set forth affirmative facts in short and 

plain terms related to any of the affirmative defenses identified in Tenn. R. Civ. P. 8.03 

and they do not identify the Tennessee Title Loan Act by name or by Tenn. Code Ann. § 

45-5-101 to -120. Moreover, their pleadings fail to provide the bare-minimum facts the 

rules require. Therefore, we find no error with the trial court’s rulings that the Sullivans 

failed to properly plead any affirmative defenses, including the Tennessee Title Pledge 

Act.

II. BREACH OF CONTRACT 

The Sullivans agree with the trial court’s determination that the transactions at 

issue were loans, not contracts to sell the automobiles. Nevertheless, they contend the 

evidence does not support the finding that Mr. Sullivan is liable for breach of contract. 

In their brief the Sullivans present their legal argument on this issue in one and 

one-half pages. The first half of the first page correctly recites the essential elements of a 

breach of contract claim with citations to the requisite authority. Unfortunately, the 

remainder of their argument cites no authority whatsoever. Moreover, their argument 

contains no citations to the record to identify where the relevant facts can be found,

although their argument is that the evidence does not support the trial court’s finding that 

Mr. Sullivan is liable for breach of contract. 

The remainder of the Sullivans’ argument on the breach of contract issue reads as 

follows:

The loans were against public policy in that Mr. Holland is not licensed to 

enter title pledge agreements in Tennessee under the TPA. Further, with 
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respect to the 2013 BMW, Mr. Sullivan could not legally enter an 

agreement to sell or encumber the vehicle because he was not the owner. 

Mr. Holland was aware the 2013 BMW was owned by Mrs. Sullivan. 

Regardless, Mr. Holland made the predatory loan to Mr. Sullivan secured 

by the 2013 BMW.

In addition, the written contracts lack sufficient information necessary to be 

enforceable. The agreements do not contain payment terms to even hint at 

the respective obligations of the Defendants. For the foregoing reasons, the 

evidence does not support finding Mr. Sullivan liable for breach of 

contract.

The Rules of Appellate Procedure require an appellant to include in the appellant’s 

brief an argument that sets forth, inter alia: “the contentions of the appellant with respect 

to the issues presented, and the reasons therefor, including the reasons why the 

contentions require appellate relief, with citations to the authorities and appropriate 

references to the record (which may be quoted verbatim) relied on; . . .” Tenn. R. App. P. 

27 (a)(7).

In addition to the foregoing, Tenn. Ct. App. R. 6 requires the following content in 

a brief: 

(a) Written argument in regard to each issue on appeal shall contain:

(1) A statement by the appellant of the alleged erroneous 

action of the trial court which raises the issue and a statement 

by the appellee of any action of the trial court which is relied 

upon to correct the alleged error, with citation to the record 

where the erroneous or corrective action is recorded.

(2) A statement showing how such alleged error was 

seasonably called to the attention of the trial judge with 

citation to that part of the record where appellant’s challenge 

of the alleged error is recorded.

(3) A statement reciting wherein appellant was prejudiced by 

such alleged error, with citations to the record showing where 

the resultant prejudice is recorded.

(4) A statement of each determinative fact relied upon with 

citation to the record where evidence of each such fact may 

be found.
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(b) No complaint of or reliance upon action by the trial court will be 

considered on appeal unless the argument contains a specific reference to 

the page or pages of the record where such action is recorded. No assertion 

of fact will be considered on appeal unless the argument contains a 

reference to the page or pages of the record where evidence of such fact is 

recorded.

The Sullivans’ brief fails to satisfy these requirements. Namely, their brief is 

missing “authorities” to support their contentions that (1) the loans were against public 

policy, (2) Mr. Sullivan could not legally enter an agreement, (3) the loans were 

predatory, and (4) the written contracts lacked sufficient information necessary to be 

enforceable. See Tenn. R. App. P. 27(a)(7). Moreover, their brief fails to make 

“appropriate references to the record” they rely on to contend that the evidence does not 

support the finding at issue. See id. Furthermore, the Sullivans’ brief fails to provide a 

statement of each determinative fact relied upon with citation to the record where 

evidence of each fact may be found or a reference to the pages of the record where 

evidence of such fact is recorded. See Tenn. Ct. App. R. 6(a)(4) and (b). Thus, the 

Sullivans’ brief fails to comply with the requisite rules.

The deficiencies here are very similar to those in Bean v. Bean, 40 S.W.3d 52

(Tenn. Ct. App. 2000), where the appellant’s “Argument” did not address the issues 

raised, and it did not “provide citations to facts in the record or provide citations of 

authority that support his allegations. . . .” Bean at 55. “Courts have routinely held that 

the failure to make appropriate references to the record and to cite relevant authority in 

the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the 

issue.” Id. (citing State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997);

Rampy v. ICI Acrylics, Inc. 898 S.W.2d 196, 210 (Tenn. Ct. App. 1994); State v. 

Dickerson, 885 S.W.2d 90, 93 (Tenn. Crim. App. 1993)). Courts have also held that an 

issue is waived when it is “simply raised without any argument regarding its merits.” Id. 

at 56. (citing Blair v. Badenhope, 940 S.W.2d 575, 576-77 (Tenn. Ct. App. 1996); Bank 

of Crockett v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App. 1988)).

This court is under no duty to verify unsupported allegations in a party’s brief, or 

for that matter consider issues raised but not argued in the brief. Id. (citing Duchow v. 

Whalen, 872 S.W.2d 692, 693 (Tenn. Ct. App. 1993); Airline Const. Inc., v. Barr, 807 

S.W.2d 247 (Tenn. Ct. App. 1990)). Because of the significant deficiencies in the 

argument on this issue, we decline to address the issue. See id. 

III. SLANDER OF TITLE

The Sullivans contend that the trial court erred in four respects in finding they

were liable for slander of title. The grounds for this contention are that: (1) slander of title 

does not apply to personal property; (2) the Sullivans made no false statement; (3) Mr. 
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Holland did not perfect his lien on the Land Rover, and thus, there was no notice of any 

interest possessed by Mr. Holland; and (4) Mr. Sullivan did not have legal authority to 

convey title of the BMW, and therefore, Mr. Holland could not have had legal title 

because it remained with Mrs. Sullivan.

To prevail on a slander of title claim, a plaintiff must prove that (1) he/she 

possessed an interest in the property, (2) the defendant published false statements about 

the title to the property, (3) the defendant acted maliciously, and (4) the false statement 

proximately caused the plaintiff a pecuniary loss. Brooks v. Lambert, 15 S.W. 3d 482, 

484 (Tenn. Ct. App. 1999). 

The Sullivans first contend that slander of title does not apply to personal 

property; however, they provide no authority to support their contention. Although our

courts may not have determined whether slander of title applies to personal property, it is 

apparent from this court’s application of the Restatement (Second) of Torts in previous 

cases that slander of title does apply to personal property. See Harmon v. Shell, No. 01-

A-01-9211CH00451, 1994 WL 148663, at *4 (Tenn. Ct. App. Apr. 27, 1994) (no Tenn. 

R. App. P. 11 application filed) (“Slander of title now generally refers to the publication 

of false and malicious statements disparaging another’s interest in real or personal 

property that the person making the statements should recognize as likely to result in 

pecuniary harm through the conduct of third persons with respect to the other’s interest in 

the property.” Restatement (Second) of Torts § 624 (1976) (emphasis added)). Therefore, 

we are of the opinion that slander of title does apply to personal property, and in this 

case, to the BMW. 

For their second ground, the Sullivans contend they did not publish any false 

statements. The modest evidence the Sullivans ask us to consider is not significant 

enough to preponderate against the trial court’s findings. Specifically, the Sullivans assert 

that it was not a false statement for Mr. Sullivan to claim that he owned the Land Rover 

or for Mrs. Sullivan to claim that she owned the BMW. The Sullivans, however, fail to 

mention that the published false statement stemmed not from a claim of ownership but 

from their actions in obtaining duplicate titles after they had already conveyed title to Mr. 

Holland in exchange for the loan.

4

Therefore, the evidence supports the finding that the 

Sullivans made false statements with regard to the titles to the vehicles.

 

4

For the Sullivans to have obtained a duplicate title, the application required the Sullivans to state 

under penalty of perjury that the original was either lost, stolen, mutilated, returned due to non-delivery, 

altered, or illegible. See Tenn. Code Ann. § 55-3-115. However, the Sullivans’ original titles were neither 

lost, stolen, mutilated, returned due to non-delivery, altered, or illegible, but rather, the titles were 

intentionally conveyed to Mr. Holland for a significant sum of money. 
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The Sullivans also contend the claim must fail because Mr. Holland did not perfect 

his security interest in the property. The trial court found that Mr. Holland had an interest 

in the property because he held titles to the vehicles as security for the loans. We agree. 

“The agreement creating a security interest can be in any form—sale, 

consignment, lease, bailment—or whatever the parties can imagine. The agreement need 

not say that it is granting a security interest.” In re Village Import Enterprises, Inc., 126 

B.R. 307, 309 (Bankr. E.D. Tenn. 1991). Therefore, the unorthodox “Bill of Sale” may be 

properly construed as a security agreement from which Mr. Holland’s security interest 

arises. 

The fact that Mr. Holland did not perfect his security interest is of no consequence 

in this case because doing so is not necessary to protect one’s security interest against the 

debtor. Perfection is only relevant as to claims by third parties. See AmSouth Bank v. 

Trialer Source, Inc., 206 S.W.3d 425, 434 (Tenn. Ct. App. 2006) (“A security interest 

that is unperfected but has attached is enforceable against both the debtor and general 

unsecured creditors.” Rev. UCC § 9–201(a). However, an unperfected security interest . . 

. still has a multitude of weaknesses.”) Therefore, Mr. Holland did have a valid security 

interest in the BMW, notwithstanding the fact that he did not perfect his security interest. 

For their fourth ground, the Sullivans contend that Mr. Sullivan did not have legal 

authority to convey title of the BMW; therefore, Mrs. Sullivan owned the vehicle when 

they applied for a duplicate title. It is important to first recognize that this ground has no 

relevancy to the Range Rover because Mr. Sullivan was the registered owner of that 

vehicle. Additionally, he made false claims to obtain a duplicate title for that vehicle, all 

the while knowing that Mr. Holland had the original title and a security interest in the 

vehicle.

As for the BMW, this argument assumes that Mr. Sullivan obtained possession of

the title without his wife’s permission, forged her signature, and delivered the original 

signed title to Mr. Holland along with the bill of sale/secured loan agreement. The 

problem with this assumption is that the trial court made specific findings of fact that 

contradict this contention, and the evidence does not preponderate against the trial court’s 

findings. More importantly, the findings of fact are principally based on the court’s 

determination that the testimony of Mrs. Sullivan was not credible. Credibility 

determinations are uniquely within the discretion of the trial court. 

Appellate courts give great weight to a trial court’s factual findings that rest on 

determinations of credibility and weight of oral testimony. State ex rel. Flowers v. 

Tennessee Trucking Ass’n Self Ins. Grp. Trust, 209 S.W.3d 595, 599 (Tenn. Ct. App. 

2006) (citing Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997)); see 

Woodward v. Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007). When it comes to 

live, in-court witnesses, appellate courts afford trial courts considerable deference when 
- 14 -

reviewing issues that hinge on the witnesses’ credibility because trial courts are “uniquely 

positioned to observe the demeanor and conduct of witnesses.” Kelly v. Kelly, 445 

S.W.3d 685, 692 (Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 

2000)). “[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness 

credibility absent clear and convincing evidence to the contrary.” Id. (quoting Wells v. 

Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)) (alteration in original).

Having reviewed the record, we find no abuse of discretion in the trial court’s credibility 

determinations. 

The trial court made specific findings of fact concerning each element of the

slander of title claim to conclude that Mr. Holland met his burden in regards to each of 

these elements. The relevant findings of fact include: 

(1) Plaintiff had an interest in property because he held the titles as 

securities for the loan. 

(2) Defendants published false statements about the property. Both 

Defendants obtained duplicate titles and they were false statements about 

the title to the property.

(3) Defendants acted maliciously because they knew Plaintiff was 

attempting to gain possession of both vehicles. The BMW was in their 

garage and was not revealed to the tow truck driver. After Mr. and Mrs. 

Sullivan knew Mr. Holland was trying to get the vehicles back, they both 

went to county court clerk and applied for duplicate titles.

(4) Those false statements caused Plaintiff’s loss because the BMW was 

sold. 

The evidence in the record does not preponderate against any of these findings.

Therefore, we find no error with the trial court’s decision on this issue

IV. CONSPIRACY TO COMMIT SLANDER OF TITLE

The Sullivans contend the trial court erred by holding them liable for conspiracy to 

commit slander of title. They contend they could not act in concert to obtain duplicate 

titles because they did not co-own the vehicles and, as a consequence, each of them had 

to make a separate application for a duplicate title. They also contend Mrs. Sullivan 

lacked sufficient knowledge to conspire, relying in principal part on one comment the 

trial court made from the bench, that being “Doesn’t sound like she knows a lot.”

For his part, Mr. Holland contends there is sufficient evidence to support the 

findings that the Sullivans jointly made the decision to obtain duplicate titles. To support 

his contention, Mr. Holland asserts that the Sullivans went together to apply for and

obtain duplicate titles and that the trial court’s comment about Mrs. Sullivan’s 
- 15 -

knowledge, or lack thereof, appeared to be “an expression of sarcasm based upon Mrs. 

Sullivan’s demeanor and lack of candor with the trial court on the day of trial.”

The elements of a cause of action for civil conspiracy are: (1) a common design 

between two or more persons; (2) to accomplish by concerted action an unlawful 

purpose, or a lawful purpose by unlawful means; (3) accompanied by an overt act in 

furtherance of the conspiracy; and (4) a resulting injury.5 Kincaid v. SouthTrust Bank, 

221 S.W.3d 32, 38 (Tenn. Ct. App. 2006) (citing Morgan v. Brush Wellman, Inc., 165 

F.Supp.2d 704, 720 (E.D. Tenn. 2001)). Upon a finding of conspiracy, each conspirator is 

liable for the damages resulting from the wrongful acts of all co-conspirators in carrying 

out the common scheme. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 703 

(Tenn. 2002) (citing Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 67 (Tenn.

2001)).

Here, Mr. and Mrs. Sullivan jointly pursued a common design to deprive Mr. 

Holland of his security interest in the vehicles by making false applications for duplicate 

titles. The Sullivans engaged in two overt acts in furtherance of this conspiracy. First, as 

the trial court correctly described it, they went together “to the county court clerk’s office 

and obtained duplicate titles in an attempt to deprive Plaintiff of his security . . . .”

Second, they used one of the unlawfully obtained duplicate certificates of title to sell Mrs. 

Sullivan’s BMW to a third-party, knowing all the while that Mr. Holland possessed a 

security interest in the vehicle. As a result, Mr. Holland lost his security interest in the 

$35,000 BMW. 

The evidence supports the trial court’s finding that the Sullivans acted in concert. 

At trial, Mr. Sullivan testified that he and his wife jointly decided to obtain duplicate 

titles and they went together to apply for the duplicate titles. The record also supports the 

court’s finding that Mrs. Sullivan knowingly participated in the conspiracy. In fact, Mrs. 

Sullivan admitted at trial that the $5,000 payment was remitted with the hope that it 

would extinguish the debt owed on her BMW, a fact she knew prior to applying for the 

duplicate title. The record also establishes that she knew Harpeth Towing was attempting 

to possess her BMW in order to deliver it to Mr. Holland. Therefore, we affirm the trial 

court’s decision.

V. PUNITIVE DAMAGES

The Sullivans put forth two arguments that the trial court erred in its award of 

punitive damages. First, the Sullivans argue that the trial court erred because the only 

 

5

A civil conspiracy also requires an underlying predicate tort allegedly committed pursuant to the 

conspiracy. Watson’s Carpet & Floor Coverings, Inc. v. McCormick, 247 S.W.3d 169, 186 (Tenn. Ct. 

App. 2007) (citations omitted). In this case the underlying predicate tort is slander of title. 
- 16 -

action in which punitive damages may be awarded is slander of title. The Sullivans’

second argument is that this case is not one of the “most egregious cases” as 

contemplated in Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992). 

In addressing the first argument, the Sullivans take issue with the trial court’s 

finding by clear and convincing evidence that the Sullivans acted intentionally but not 

maliciously. Specifically, the Sullivans argue that to sustain an action for punitive 

damages, a plaintiff may only rely on the mental states contained within the elements of 

the tort which gives rise to punitive damages. For example, the tort of intentional 

infliction of emotional distress (“IIED”) requires the finding of an intentional act. While 

punitive damages may be awarded when a defendant acts intentionally, fraudulently, 

maliciously, or recklessly, the Sullivans would argue that under an IIED claim, a plaintiff 

may only be awarded punitive damages if plaintiff proved defendant acted intentionally

by clear and convincing evidence, and therefore, the other mental states should be 

ignored.

The Sullivans provide no authority to support their contention, and we find none. 

A court may award punitive damages if it finds that a defendant acted intentionally, 

fraudulently, maliciously, or recklessly. Id. A person acts intentionally when that person 

acts with “the conscious objective or desire to engage in the conduct or cause the result.”

Id. Furthermore, “because punitive damages are to be awarded only in the most egregious 

of cases, a plaintiff must prove the defendant’s . . . conduct by clear and convincing 

evidence.” Id. Here, the trial court found that the Sullivans acted intentionally by clear 

and convincing evidence. From a review of the record, the evidence supports this 

conclusion. 

In Hodges, our Supreme Court refined the type of conduct and cases for which 

punitive damages could be awarded in Tennessee, but as the court explained, it was their 

intent to restrict the availability of punitive damages without “dull[ing] the potentially 

keen edge of the doctrine as an effective deterrent of truly reprehensible conduct.” Id. at 

901 (quoting Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985)). After explaining their 

reasoning, the Court established the new standard, which remains in effect today:

In Tennessee, therefore, a court may henceforth award punitive damages 

only if it finds a defendant has acted either (1) intentionally, (2) 

fraudulently, (3) maliciously, or (4) recklessly.

A person acts intentionally when it is the person’s conscious objective or 

desire to engage in the conduct or cause the result. Cf. T.C.A. § 39-11-

302(a) (1991) (criminal definition of “intentional”). . . . 

Id. (emphasis added).
- 17 -

The Sullivans made the intentional decision to deprive Mr. Holland of his security 

interest in the vehicles after Mr. Holland attempted to possess the BMW. They

accomplished their goal by obtaining duplicate titles based on the false representations 

that the titles were lost and then by using the duplicate titles to sell the BMW. 

As for the Sullivans’ argument that the court should not have awarded punitive 

damages because this case is not one of “the most egregious” as contemplated by 

Hodges, it is apparent that they misconstrue the applicable standard. When the Court

adopted the more restrictive Hodges standard, the Court made it clear that it was the 

Court’s intent to restrict the availability of punitive damages without “dull[ing] the 

potentially keen edge of the doctrine as an effective deterrent of truly reprehensible 

conduct.” Id. (quoting Tuttle, 494 A.2d at 1361). Further, the Court explained: 

[B]ecause punitive damages are to be awarded only in the most egregious 

of cases, a plaintiff must prove the defendant’s intentional . . . conduct by 

clear and convincing evidence. This higher standard of proof is appropriate 

given the twin purposes of punishment and deterrence: fairness requires 

that a defendant’s wrong be clearly established before punishment, as such, 

is imposed; awarding punitive damages only in clearly appropriate cases 

better effects deterrence.

Id. 

Here, Mr. Holland proved by the clear and convincing standard that the Sullivans 

acted intentionally and by unlawful means to deprive him of his property interest in the 

BMW. Thus, as the trial court correctly found, Mr. Holland satisfied the requirements for 

an award of punitive damages. Accordingly, we find no error with this decision.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against the appellants, Brian and Tamara J. Sullivan.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.